He proved as much when, as an assistant U.S. attorney in 2003, he organized a sting to reacquire North Carolina’s original copy of the Bill of Rights, which had been stolen during the Civil War.
As he tours the state campaigning for reelection in November, Newby is talking quite a bit about the Constitution. Not just the U.S. Constitution, but also the North Carolina Constitution, which he teaches as an adjunct professor of law at Campbell University.Newby toured the Lake Gaston area on in July making several stops in Warrenton and visiting the plantation of an ancestor of his wife, Nathaniel Macon, before culminating the trip by addressing the Eatons Ferry AARP group’s meeting at the Lake Gaston Lions Club.
The topic of Newby’s talk was the 225th anniversary of the U.S. Constitution. His premise — that the debates over several recent controversial decisions of the U.S. Supreme Court did not start in state courts or houses of Congress, but rather in 1787, when the Founding Fathers first debated the U.S. Constitution and then its first 10 amendments, collectively known as the Bill of Rights.
“That’s what all the discussion is about,” said Newby. “Did this document grant to Congress the power to control the borders in Arizona at the exclusion of any state, and did this document grant to the federal government the power to regulate healthcare? The debate took place in 2012, but the genesis was in 1787 with the Federalists and the Anti-Federalists.”
His stump speech is vital history lesson
That he visited Macon’s farm at Buck Spring Plantation earlier in the day fit into the history lesson Newby provided for the AARP group.
A Warren County native, Macon was among the nation’s Founding Fathers. Guided by the philosophical principle that the government that governs least governs best, he argued for limited national government while championing local and state governments.
While the political movement to which Macon subscribed, now called the Anti-Federalists, eventually lost the war, they won a significant battle in the late 1780s. The Bill of Rights was not only prompted by Macon’s Anti-Federalists, but also by his home state.
“The North Carolinians said, ‘We believe that power corrupts and absolute power corrupts absolutely, and we are very concerned about giving any government the kind of power that this federal government would have, and without a Bill of Rights, we will not ratify this Constitution,’” said Newby.
When the U.S. Constitution was originally before the states, it was only ratified by 11 of the original 13 U.S. colonies. North Carolina was the only state to hold a constitutional convention and not ratify the Constitution, while Rhode Island put off even holding a constitutional convention.
The sticking point was individual liberty:
“North Carolina so understood the abusive powers of a tyrannical government, that when we got together in 1776 to draft our state constitution, we first set out a declaration of rights,” said Newby. “We set out 25 fundamental rights that the state could not encroach upon, and then we went home for the day. We said we’re not going to structure this government at the same time we’re talking about the rights, because somehow, somebody may think that governmental power is equal to fundamental rights.
“So we went home, came back the next day and passed the structural form of government, illustrating for North Carolinians that fundamental, individual rights are to be protected, and that government is there to serve and protect those rights.”
The following year, the U.S. Congress passed the Bill of Rights, along with a resolution instructing President George Washington to send a copy of the Bill of Rights to each of the 11 states, along with North Carolina and Rhode Island. North Carolina subsequently held a second constitutional convention and ratified the Constitution, becoming the 12th state in the union.
Effect on major judicial decisions today
While declining to go into detail about how he would have ruled in the cases, Newby argued those events in the late 1780s framed the recent U.S. Supreme Court decisions to strike down most of the Arizona immigration law and uphold the Affordable Care Act, which mandates that Americans either buy health insurance or pay a penalty.
Citing the 10th amendment to the U.S. Constitution, which states, “The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states, respectively, or to the people,” Newby said the power to control its borders is clearly granted to the federal government by the U.S. Constitution, although the healthcare ruling is not so clear-cut.
While the Constitution does grant Congress the power to tax and goes on to give the federal government the power to regulate commerce, the U.S. Supreme Court did not uphold the healthcare law based on the Commerce Clause, striking down that argument in a 5-4 vote.
Rather, the Supreme Court called the penalty required of uninsured Americans a tax and upheld the law based on Congress’s power to tax in a 5-4 vote, with the majority, including chief justice John Roberts, who proved to be the swing vote, writing, “The court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgement is reserved to the people.”
Meanwhile, the dissent was clear in its assertion that the Constitution does not allow the federal government to mandate that citizens buy anything.
“Some could argue it is a proper respect of separation of powers,” said Newby. “Others would argue that the U.S. Supreme Court allowed Congress to go beyond the enumerated powers that are in this Constitution.”
Newby did say he felt U.S. President Barack Obama, who championed the healthcare law, with his public comments intimidated Roberts to a certain extent.
“I think it was unfortunate,” said Newby. “Certainly any President, any citizen has the right to comment on the ebb and flow of power among the branches. Nonetheless, I think when you’re President of the United States, you have to be more circumspect, particularly with a matter that is before the courts.
“We want the courts to a large degree to be independent and not to be influenced by the political ups and downs and peaks and valleys. The law needs to be consistent and predictable.”
Newby also took issue with U.S. Supreme Court Justice Ruth Bader Ginsburg’s assertion earlier this year that the U.S. Constitution is outdated and antiquated and that budding democracies should look to other examples when drafting their own constitutions.
“With all due respect, Justice Ginsburg, shame on you,” said Newby. “We have the longest living republic in the history of the world. And quite frankly, when I want to emulate someone, I’m going to look for a long period of success. By God’s grace, that’s what we have, and Justice Ginsburg, there’s no improvement on that.”
Newby, of Raleigh, is running to retain the N.C. Supreme Court seat he’s held since 2004 against challenger Sam J. Ervin IV, of Morganton. Election day is scheduled for Tuesday, Nov. 6.